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Hardwick v. Clarke

April 8, 2010



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole for two years at his seventh parole consideration hearing held on May 10, 2005. Petitioner claims that the Board's decision violated state law and his federal constitutional rights to due process and equal protection. He also argues that the California parole statute is unconstitutionally vague and that he was denied parole based on an illegal no-parole policy. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted on petitioner's due process claim and denied in all other respects.


Petitioner is confined pursuant to a judgment of conviction entered in the Los Angeles County Superior Court in 1980. (Answer, Ex. 1.) At that time petitioner pled guilty to second degree murder, in violation of California Penal Code § 187. (Id.) On April 22, 1980, petitioner was sentenced to state prison for a term of fifteen years to life with the possibility of parole. (Id.) Petitioner's seventh parole consideration hearing, which is placed at issue by the instant habeas petition, was held on May 10, 2005. (Answer, Ex. 2.) On that date, a panel of the Board of Parole Hearings (hereinafter "Board"), then the Board of Prison Terms, found petitioner not suitable for release and denied parole for two years. (Id.)

On October 21, 2005, petitioner filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court, claiming that the Board's failure to find him suitable for parole at his seventh parole suitability hearing violated his federal constitutional rights. (Answer, Ex. 5.) The Superior Court rejected petitioner's claims in a reasoned decision on the merits. (Id.) In denying relief, the Superior Court stated as follows:

The Court has read and considered petitioner's Writ of Habeas Corpus filed on October 21, 2005. Having independently reviewed the record, giving deference to the broad discretion of the Board of Prison Terms ("Board") in parole matters, the Court concludes that the record contains "some evidence" to support the Board's finding that petitioner is unsuitable for parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 658; see Cal. Code Regs., tit. 15, §2402.)

The Board found petitioner unsuitable for parole because the commitment offense was especially cruel and callous in that it was dispassionate and calculated and the motive was inexplicable. The Board also found petitioner unsuitable because of his criminal history and unstable social history.

Petitioner is serving fifteen years to life for murder in the second degree. The record reflects petitioner entered a restaurant and shot the victim three times in the chest, killing him. Petitioner told the Board he and his cousin had been arguing with the victim and the victim's words were "very disrupted towards us." "Out of rage" he took a gun from his cousin and fired at the victim. Those facts are "some evidence" the crime was carried out in a "dispassionate and calculated manner" (Cal. Code Regs., tit. 15, §2402(c)(1)(B)) and that the motive was "inexplicable" (Cal. Code Regs., tit. 15, § 2402(c)(1)(E)).

An inmate may be unsuitable for parole if he had a previous record of violence. (Cal. Code Regs., tit. 15, § 2402(c)(2).) The record reflects petitioner had a lengthy criminal history prior to the life crime. Included in that history is a conviction for assault with a deadly weapon. Thus, there is "some evidence" petitioner is unsuitable because of a previous record of violence.

An inmate may also be unsuitable for parole if he has a history of "unstable or tumultuous relationships with others." (Cal. Code Regs., tit. 15, § 2402(c)(3).) The record reflects at the age of ten petitioner was suspended more than once, from school. At the age of thirteen petitioner's mother filed an incorrigible petition alleging petitioner refused to follow her direction and stole from family members and neighbors. He was expelled from school in the seventh grade. He was declared a ward of the court and placed in a foster home. He was twenty-one at the time of the life crime and told the Board he "let my cousin talk me into the situation . . ." All of those facts are "some evidence" petitioner has an unstable social history.

The court rejects the remainder of petitioner's arguments. In determining parole suitability, the Board's primary concern is the safety of the community. (In re Dannenberg (2005) 34 Cal.4th 1061.) The Board will not consider the matrix until it finds petitioner suitable under Penal Code § 3041(b). (See id. at 1070.) The record reflects the Board considered petitioner's post conviction gains but still concluded petitioner would pose an unreasonable threat to public safety. (Penal Code § 3041(b).) Despite petitioner's contention that his sentence has been converted to life without the possibility of parole, the fact remains he continues to have the possibility the Board will find him suitable for parole in the future.

Accordingly, the petition is denied. (Id.) (emphasis in original).

On January 3, 2006, petitioner filed a habeas petition in the California Court of Appeal for the Second Appellate District, in which he raised the same claims that were contained in his habeas petition filed in the Los Angeles County Superior Court. (Answer, Ex. 6.) On January 17, 2006, the California Court of Appeal summarily denied that petition. (Id.)

On January 27, 2006, petitioner filed a habeas petition in the California Supreme Court, raising the same claims that were contained in his petitions for a writ of habeas corpus filed with the Los Angeles County Superior Court and the California Court of Appeal. (Answer, Ex. 7.) That petition was summarily denied by order filed March 15, 2006. (Id.)


The Board described the facts of petitioner's offense, which have not changed over the years, at the May 10, 2005 parole suitability hearing, as follows:

On June 25, 1979, at approximately 3:50 a.m. Hardwick entered Ernie's Restaurant in Inglewood, California and shot the victim three times in the chest with a revolver. Hardwick fled the area in a vehicle driven by (inaudible) defendant Gary Newsom, that's NE-W-S-O-M. The victim died at the scene of the crime. After a lengthy investigation, Hardwick was arrested while incarcerated on another crime. (Answer, Ex.2 at 11-12.) Petitioner admitted at his parole suitability hearing that he committed the murder. Petitioner explained that he shot the victim because his cousin told him the victim had done "something" to him. (Id. at 12.) Petitioner, his cousin, and the victim were arguing in the parking lot of a restaurant, and petitioner took a handgun from his cousin and shot the victim. (Id.) Petitioner shot the victim "out of rage" because the victim's words were "very disrupted" towards petitioner and his cousin. (Id. at 13.) Petitioner explained to the Board that his cousin talked him "into the situation" and got him involved "in the situation." (Id. at 14.) He stated that he was older than his cousin and had always "looked over him." (Id. at 15.) At his parole hearing petitioner further stated that he was "young and misled then." (Id.) Petitioner was 21-years-old at the time of the crime. (Id.)


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo.

Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, ...

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